IN THE COURT OF APPEALS OF IOWA

No. 16-0978

Filed July 19, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DONALD LEROY STEELE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, 

Judge.

A defendant challenges his judgment and sentence for possession of 

marijuana with intent to deliver. AFFIRMED. 

Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, Judge.

Donald Steele pleaded guilty to possession of marijuana with intent to 

deliver in return for the State’s dismissal of a similar offense involving crack 

cocaine. Several days later, Steele wrote the judge a letter asking to withdraw 

his guilty plea. Treating his request as a motion in arrest of judgment, the district 

court took testimony from Steele. The district court did not find Steele’s 

testimony credible when compared with his statements at the plea hearing and 

denied his motion in arrest of judgment. On appeal, Steele contends the district 

court abused its discretion in denying his motion because (1) his guilty plea was 

not knowing, voluntary, and intelligent and (2) the plea lacked a factual basis as 

to his intent to deliver. Because the district court properly exercised its discretion 

in rejecting Steele’s request to withdraw his guilty plea, we affirm. 

I. Facts and Prior Proceedings

According to the minutes of evidence, on New Year’s Eve of 2015, Des 

Moines police officer Emily Shoff-Salsbery saw the Toyota Camry driven by

Steele turn without signaling. As the officer closed in on the Camry, Steele made 

several abrupt turns. Steele then sped through a residential neighborhood. 

Before Shoff-Salsbery could activate her lights, Steele drove down a dead-end 

street, stopped the car, and fled on foot. Steele’s female passenger also left the 

Camry but obeyed the officer’s command to stop. The passenger told ShoffSalsbery she just met Steele when he offered her a ride home after she had an 

argument with her boyfriend. The passenger did not know why Steele fled and 

only had her purse and “some potato chips” inside the car. In her investigation, 

Shoff-Salsbery learned the Camry driven by Steele was a rental car and the 
3

passenger had not rented it. When the officer approached the car, she smelled 

an odor of marijuana coming from the driver’s side, and behind the driver’s seat,

she found a brown jacket containing a plastic bag of marijuana. 

Meanwhile, another officer chased Steele by following his tracks in the 

fresh snow for about four blocks. The footprints led to a parking lot, where the 

officer heard Steele talking on his phone, asking for a ride. The officer called to 

Steele, who again took off. Two officers pursued Steele until they found him 

walking on a busy street. The officers ordered Steele “to drop what was in his 

hand,” and Steele “threw the items to the side and stopped and slowly went to 

the ground.” After arresting Steele, the officers saw the tossed items included 

“several baggies including a quantity of marijuana and a quantity . . . of cocaine 

base ‘crack,’ as well as a car key” to the Camry abandoned by Steele. 

In her affidavit accompanying the complaint, Officer Shoff-Salsbery stated 

Steele ran from the car but was caught a short distance later. The affidavit 

continued: “Inside the vehicle officers found a larger plastic bag that also 

contained marijuana . . . . [Steele] was also found with $767 in various bills on 

his person, both the packaging of the narcotics and the amount of cash are 

consistent with the sale of narcotics.” 

A February 2016 lab report showed Steele possessed 7.23 grams of 

cocaine. Important to this appeal, the lab report divided the marijuana into two 

listed items: the first item weighed 10.43 grams and the second item weighed 

4.01 grams (divided into two subparts weighing 1.42 and 2.59 grams). Steele 

contends, logically, the first item was the “larger plastic bag” of marijuana found

inside the car and the smaller item was the marijuana he tossed on the ground. 
4

The State does not dispute this contention but asserts the record supports 

Steele’s possession of both the marijuana tossed on the ground and the 

marijuana left inside the jacket in the rental car.

According to the minutes, the State expected Shoff-Salsbery, along with 

the officers who chased Steele, to testify:

[T]he items found in connection with [Steele] in this case are 

consistent with those items found in the possession of drug dealers.

[They] will further testify that the amount of cocaine base 

“crack” and marijuana recovered in this case, the manner in which it 

was packaged, the other facts and circumstances, . . . are 

consistent with possession of [both such drugs] for sale and 

inconsistent with the possession of [both such drugs] merely for 

personal use. 

 

The State charged Steele in two counts: (I) possession of a controlled 

substance (cocaine) with intent to deliver, in violation of Iowa Code section 

124.401(1)(c)(3) (2015), a class “C” felony; and (II) possession of a controlled 

substance (marijuana) with intent to deliver, in violation of Iowa Code section 

124.401(1)(d), a class “D” felony. After conferring with private counsel, Steele 

entered into a plea bargain with the State in which he agreed to provide a factual 

basis for count II. In exchange, the State agreed to dismiss count I at 

sentencing. The parties were free to argue for an appropriate sentence. 

We set out the portions of the April 2016 plea hearing relevant to Steele’s 

appellate challenges. The court told Steele he had a right to have a lawyer 

appointed at public expense if he decided to go to trial. Steele indicated he 

understood. The court also stated, “this is a class ‘D’ felony,” and set out the 

penalties, including the fact Steele could spend up to five years in prison and pay 

up to a $7500 fine, explaining: “I am telling you that because I want you to know 
5

the maximum penalties you are subjecting yourself to by pleading guilty today. 

Do you understand?” Steele responded he did. Next the court asked: “Knowing 

all that, do you still want to plead guilty today?” Steele responded: “I have a 

question.” The court stopped the plea hearing and went off the record. Steele 

discussed his question with his attorney. When Steele was ready to proceed, the 

following exchange occurred:

THE COURT: Okay. So let me ask that last question again. 

Knowing what you are subjecting yourself to, do you still want to 

plead guilty, sir?

THE DEFENDANT: Yes, ma’am. 

. . . .

THE COURT: Are you pleading guilty today voluntarily and 

of your own free will?

THE DEFENDANT: Yes, ma’am. 

Thereafter, the court told Steele the elements the State would have to 

prove at trial, including: “[Y]ou possessed a controlled substance with intent to 

deliver it, that being marijuana. And . . . intent to deliver, that means that you 

either intended to sell it, share it, or give it away.” Steel responded he had no 

questions about what the State would have to prove. Steele said he threw the 

marijuana on the ground, he knew it was illegal to have marijuana, the marijuana 

was packaged in a baggy, and he was going to smoke some of it and share 

some of it. Steele agreed the court could also consider the minutes of testimony 

to establish a factual basis and told the court he was satisfied with the advice and 

services of his plea attorney. 

The court gave Steele one more chance to reinstate his plea of not guilty 

and “have your case go to trial,” but Steele wanted to enter a guilty plea and did 
6

so. After discussing Steele’s right to file a motion in arrest of judgment, the court 

ordered a presentence investigation report and set a sentencing hearing. 

On April 21, 2016, Steele sent a letter to the court, claiming he had been 

misled because he wanted to plead to possession and not to possession with 

intent to deliver. The court treated the letter as a motion in arrest of judgment. 

Steele’s plea counsel withdrew, and new counsel was appointed to represent

Steele at sentencing. 

In June 2016, the district court held a joint motion-in-arrest-of-judgment

and sentencing hearing. Steele offered three reasons to set aside his guilty plea. 

First, he alleged when he told his plea counsel he wanted to go to trial, she 

responded she would withdraw if he did not accept the plea offer. Steele said he 

had been bullied into pleading and he accepted the deal out of frustration—“I felt 

like I had no other choice.” Second, Steele “didn’t understand that I could have 

another lawyer represent me. So I felt like there was no other option but to take 

what I had.” Third, Steele insisted: “I’m not a drug dealer; I’m a user.” Steele 

testified he did not intend to deliver the drugs and thought he was pleading to a 

possession offense. He argued: “I was by myself giving someone a ride home. 

How do I intend to deliver?” 

Steele admitted on cross-examination that the plea court had told him 

what the State would have to prove for him to be guilty of possession with intent 

to deliver. But Steele nevertheless claimed to have no recollection of the court 

discussing the intent-to-deliver element. After the plea court’s statements 

discussing intent to deliver and Steele’s response were read to Steele from the 
7

plea transcript, he again blamed his plea lawyer: “I answered every question that 

my lawyer told me to do, and I did what my lawyer advised me to do.” 

Quoting the plea transcript to Steele, the court denied his motion, ruling: 

And I went through this guilty plea colloquy with you, and I told you 

to stop me if you didn’t understand anything. When you are telling 

me today you were bullied into that and you didn’t know it was a 

class “D” felony, and were concerned you wouldn’t have a trial 

[attorney], I don’t find that to be credible, Mr. Steele.

The district court proceeded to sentencing, ordering Steele to serve an 

indeterminate five-year term. Steele now appeals. 

II. Motion in Arrest of Judgment

We review the district court’s denial of Steele’s motion in arrest of 

judgment for an abuse of discretion. See State v. Myers, 653 N.W.2d 574, 581 

(Iowa 2002). We reverse only where the court’s ruling is based on clearly 

unreasonable or untenable grounds. See id. We give deference to the district 

court’s factual findings based on the court’s opportunity to observe the witnesses 

but are not bound by such findings. See State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011). We address each of Steele’s challenges to the court’s denial of his 

motion in turn.

A. Knowing, Voluntary, and Intelligent Plea. Steele asserts his plea 

“was not knowing, voluntary, or intelligent.” In support, Steele points to his 

testimony at the motion hearing. Giving appropriate deference to the district 

court’s determination Steele’s testimony at the motion hearing was not credible, 

we cannot find the court abused its discretion. See id. 

During the guilty-plea colloquy, the court informed Steele that he was 

admitting possession with intent to deliver, the crime was a class “D” felony, and 
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he could have an attorney appointed if he proceeded to trial. Steele told the 

court his plea was voluntary, he turned down several chances to withdraw his 

plea, and he asked a question immediately after the court set out the maximum 

penalties for possession with intent to deliver. After further discussion with his 

counsel, Steele proceeded with his plea. Under the plea agreement, the State 

agreed to dismiss the more serious class “C” felony for possession with intent to 

deliver crack cocaine. The full colloquy belies Steele’s claim he did not 

understand the consequences of waiving his right to a trial. 

B. Factual Basis. As its title suggests, the crime of possession with 

intent requires the State to prove three elements: (1) possession (2) of a 

controlled substance (3) with intent to deliver. See Iowa Code § 124.401(1). 

Steele does not dispute his possession of the marijuana that, during the plea 

hearing, he admitted tossing to the ground. Rather, he disputes the factual basis 

that he possessed the larger stash of marijuana discovered in the rental car he 

was driving. Steele continues, without proof he possessed the marijuana found

in the car, the amount of marijuana is not enough to satisfy the intent-to-deliver

element because the weight of the baggies he tossed was “below the one-half 

ounce threshold for an accommodation offense under Iowa Code section 

124.410.”

1 Steele contends the court should have adjudged him guilty of only 

“the appropriate possession charge.” See State v. Cole, 421 N.W.2d 888, 889–

 

1

Iowa Code section 124.410 states: “In a prosecution for . . . possession with intent to 

deliver marijuana, if the prosecution proves that the defendant . . . possessed with intent 

to deliver one-half ounce or less of marijuana, which was not offered for sale, the 

defendant is guilty of an accommodation offense . . . .” Under Iowa’s previous drug 

statutes, accommodation deliverers were viewed as less culpable because they were 

furnishing controlled substances only “as a favor to the recipient” and not for profit. 

State v. McNabb, 241 N.W.2d 32, 35 (Iowa 1976) (interpreting Iowa Code section 

204.210 (1975)). 
9

90 (Iowa 1998) (explaining accommodation statute’s reference to marijuana 

possession encompasses “both sentencing and classification of the offense”). 

The State responds a factual basis existed for Steele’s plea because the 

record establishes he constructively possessed the marijuana left in the rental 

car, in addition to the marijuana he tossed when stopped after fleeing on foot. 

The combined weights of the marijuana left in the car (10.43 grams) and the 

marijuana tossed onto the ground (4.01 grams) equaled 14.44 grams—just 

slightly more than the one-half ounce referenced in the accommodation statute.2

Accordingly, the State asserts Steele’s intent to deliver could be gleaned from the 

minutes of testimony and attached lab report. 

The plea record supports the State’s assertion. Under Iowa Rule of 

Criminal Procedure 2.8(2)(b), the district court is required to find the factual basis 

supporting the plea on the record at the plea hearing. State v. Finney, 834 

N.W.2d 46, 61 (Iowa 2013). In looking for a factual basis, we may consider the 

prosecutor’s statements, the defendant’s statements, and the minutes of 

evidence. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014) (reiterating

that “[a]t the time of the guilty plea, the record must disclose facts to satisfy all 

elements of the offense”). The evidence before the plea court did not have to 

prove beyond a reasonable doubt Steele committed the crime of possession with 

 

2 Neither party converted the gram measurement in the February 2016 lab report to the 

ounce measurement in the statute. According to measurement conversion tables from 

the United States Department of Agriculture (USDA) Agriculture Research Service, to 

convert grams into ounces, multiply by 0.0353. See Measurement Conversion Tables, 

USDA Agric. Research Serv., http://www.ars.usda.gov/northeast-area/beltsville-md/beltsville

-human-nutrition-research-center/nutrient-data-laboratory/docs/measurement-conversiontables (last modified Aug. 13, 2016). In this case, the equation is 14.44 grams X 0.0353 

= 0.509732 ounces. Steele does not argue possession of the total amount of marijuana, 

in the car and on the ground, would qualify as an accommodation offense. 
10

intent to deliver; the evidence only needed to provide “facts to support the 

elements of the offense.” See id. 

Under the doctrine of constructive possession, a court may infer Steele’s 

possession of the marijuana from its location and other circumstances. See 

State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014). A court may consider these 

non-exclusive factors: (1) “incriminating actions of the person upon the police’s 

discovery of a controlled substance among or near the person’s personal 

belongings” and (2) “any other circumstances linking the person to the controlled 

substance.” Id. (citation omitted). “In a motor-vehicle case, a court may also 

consider these factors”: (1) were the drugs in plain view, (2) were the drugs with 

the defendant’s personal effects, (3) were the drugs on the same side of the car 

or next to the defendant, (4) did the defendant own the vehicle, and (5) did 

defendant engage in suspicious activity. State v. Kemp, 688 N.W.2d 785, 789

(Iowa 2004).

Here, the minutes show suspicious activity by Steele and other 

circumstances linking him to the marijuana. Specifically, Steele took evasive

action in response to being followed by police. Steele was driving the Camry and 

a jacket left behind the driver’s seat contained the greater amount of marijuana. 

The sole passenger had only recently met Steele and denied leaving the jacket in 

the car. When Steele’s abrupt turns did not shake the police, Steele abandoned 

the Camry and fled on foot through the snow, taking the rental car’s key with him. 

The passenger did not flee, talked to the police, and did know why Steele was 

running away. See State v. Carter, 696 N.W.2d 31, 41 (Iowa 2005) (finding 

driver constructively possessed drugs left in the car based on his “furtive 
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movements in contrast to the passenger’s lack of such movements”). Because 

an officer following Steele’s tracks overheard Steele calling for ride, the court 

may infer Steele did not intend to return to the car containing the marijuana while 

the police were nearby. For the second time, Steele ran instead of talking with 

an officer. As officers closed in, Steele threw away additional marijuana, crack

cocaine, and the key to the car he had abandoned. Experienced officers would 

have testified the amount of marijuana and its packaging, along with the cash 

Steele possessed, was consistent with an intent to sell the marijuana and 

inconsistent with possession for personal use. That testimony would be

buttressed by Steele’s admission at the plea hearing that he planned to “share” 

the marijuana. 

In conclusion, Steele’s constructive possession of the marijuana in the car 

he was driving, along with his admitted possession of the tossed marijuana, 

provides a factual basis for the intent-to-deliver element of the offense. 

Accordingly, the record contained a factual basis for Steele’s guilty plea, and the 

district court did not abuse its discretion in denying Steele’s motion in arrest of 

judgment.3

AFFIRMED.

 

3 On appeal, Steele also claims his sentence was illegal and should be vacated, 

asserting he “should have been adjudged guilty and sentenced under the 

accommodation statute.” Because the record showed a factual basis for Steele’s 

possession of an amount of marijuana exceeding the limit in the accommodation statute, 

that statute does not apply, and the claim cannot prevail. For the same reasons, we 

reject Steele’s final claim: “[P]lea counsel failed in an essential duty as no factual basis 

exists to supports Steele’s guilty plea, and neither plea counsel nor sentencing counsel 

informed the court of the requirements” of the accommodation statute.